The UK’s expert on the practice of consultation, Rhion Jones, and the industry’s leading Fan Engagement expert Kevin Rye, have jointly written to Baroness Twycross, the peer piloting the Football Governance Bill through the Lords, raising the concern that the critical, legal differences between ‘consultation’ and ‘engagement’ have been misunderstood in the current draft.
In its current guise ‘the Bill requires all football clubs to be required to undertake ‘consultation’, and those above the ‘threshold’ to be further required to undertake ‘engagement’
The letter raises the concern that the two concepts have been misunderstood. In its current guise, ‘the Bill requires all football clubs to be required to undertake ‘consultation’, and those above the ‘threshold’ to be further required to undertake ‘engagement’. However, both Kevin Rye and Rhion Jones – the latter known for his years of expertise in the field of consultation – say that, ‘All clubs should be required to demonstrate ‘fan engagement’, and the better resourced and those who otherwise qualify to be beyond the ‘threshold’ should be subject to the more demanding requirements of ‘consultation’.
Consultation is well established by the ‘Gunning Principles’, a set of rules that govern the practice carried out by government, local authorities, the NHS and other organisations, proposed in 1985 by Stephen Sedley QC, and accepted by the Judge in a case between Gunning v London Borough of Brent.
If followed, the principles ‘are designed to make consultation fair and a worthwhile exercise’, and are:
- that consultation must be at a time when proposals are still at a formative stage;
- that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
- that adequate time is given for consideration and response; and
- that the product of consultation is conscientiously taken into account when finalising the decision.
The letter further explains that ‘[t]he concept of ‘fan engagement’ has been around for some time and various initiatives – including the Fan Engagement Index – have made progress in encouraging better practice for some time. In contrast, the concept of ‘consultation’ is a far more demanding standard, enforceable by law and supported by a vast jurisprudence of about 300 High Court cases since the well-known ‘Gunning Principles’ were first formulated almost 40 years ago.’
You can read the letter in full below.
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One thought on “Football Bill 'contains critical misunderstanding': Letter sent to Baroness Twycross”
I am glad that you have brought attention to the ambiguous use of the terms ‘engagement’ and ‘consultation’ in the Football Governance Bill and agree that more clarity is needed. I raised it with the FSA and Clive Betts MP, who was a member of the Commons Public Bill Committee examining the earlier Conservatives bill. The feeling was that it was a piece of slack drafting and the terms were meant to be interchangeable. I’m not sure that your letter is altogether accurate though either. All regulated clubs will need initially to apply to the regulator for a provisional license, at which time all mandatory license conditions apply, including the requirement, as currently drafted, to ‘consult’ with fans. Within a maximum of three years the clubs will need to demonstrate that they meet the threshold requirements, including the requirement to ‘engage’ with fans, and acquire a full operating license. As you rightly point out the more stringent consultation requirement should perhaps apply to clubs with a full license and not to the provisional licensing phase. However, the threshold conditions will, after a three year transition period, apply to all and not just the better resourced clubs. All clubs will be required to operate above the thresholds. Reversing the order of ‘engagement’ and ‘consultation’ would not therefore remove the anxiety of legal challenge amongst smaller clubs about consultation but only give them more time to prepare.